Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v Nagle [2018] NSWCATOD 104 Hearing dates: 12 April 2018, 2 May 2018 and 13 June 2018 (submissions) Date of orders: 29 June 2018 Decision date: 29 June 2018 Jurisdiction: Occupational Division Before: The Hon F Marks Principal Member Decision: (1) The interlocutory application of the respondent is dismissed (2) Costs are reserved with liberty to apply. Any such application must be made within one month of this date. (3) The proceedings are stood over to a date to be fixed for further directions to allow them to be determined to finality. Catchwords: Legal practitioner – application for disciplinary findings and orders –principles of construction of statutes- held applicable law is Legal Profession Uniform Law (NSW) (2014) and not the Legal Profession Act 2004. Legislation Cited: Legal Profession Act 2004 (NSW) Legal Profession Uniform Law 2014 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 ; [1997] HCA 2 SZTA v Minister for Immigration and Border Protection [2017] HCA 34 Warbarton v Loveland 1882 1 Hud and Br 623 Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) Peter Richard Nagle (Respondent) Representation: Counsel: K Morgan SC applicant respondent self represented Solicitors: Hicksons Lawyers applicant File Number(s): 2017/00271905 Publication restriction: Nil reasons for decision on interlocutory application by respondent Background and relevant factual matters 1. The applicant, Council of the New South Wales Bar Association has brought an application for disciplinary findings and orders against the respondent Peter Richard Nagle alleging that he has engaged in professional misconduct and unsatisfactory professional conduct arising out of certain matters which occurred when the respondent was practising as a barrister. The conduct complained of is alleged to have occurred during the period January to November 2014. The genesis of these proceedings is a complaint made to the Office of the Legal Services Commissioner by a former client of the respondent on 9 September, 2015. The proceedings are brought under the provisions of the Legal Profession Uniform Law (NSW) (2014) ("the Uniform Law") which commenced operation on 1 July, 2015. The respondent claims that the conduct complained of occurred prior to the commencement of the Uniform Law, that law does not operate retrospectively and therefore the applicable law is the Legal Profession Act 2004 (NSW) ("the 2004 Act"). He has sought an interlocutory decision determining which of the two competing statutes apply. Certain consequential matters might flow if the respondent's contention is correct. These reasons for decision deal with this issue. 2. The background factual material relevant to this interlocutory matter is not in dispute and was established by affidavit evidence. As set out above, the alleged misconduct occurred during the course of dealings between the respondent and a client during the period January to November 2014. The client initiated a complaint to the Office of the Legal Services Commissioner on 9 September, 2015 which was referred to the applicant and was subsequently the subject of investigation and a resolution to commence these proceedings. 3. The respondent asserts that there are no provisions contained within the Uniform Law which would indicate that it had retrospective application to any conduct which occurred prior to 1 July, 2015. The applicant asserts that the matter is governed by transitional provisions found in the Uniform Law, and in particular Clause 27 of Schedule 4 which is in the following terms; 27 COMPLAINTS AND INVESTIGATIONS UNDER THIS LAW OF PRIOR CONDUCT (1) This clause applies to conduct that-- (a) happened or is alleged to have happened before the commencement day; and (b) could have been, but was not, the subject of a complaint (or, if relevant, a request for dispute resolution) under old Chapter 4. (2) A complaint may be made under this Law on or after the commencement day in relation to the conduct, even if the conduct could not be the subject of a complaint under this Law if it had happened on or after the commencement day. (3) An investigation may be commenced under this Law on or after the commencement day in relation to the conduct, so long as the same conduct had not been, or had not commenced to be, investigated before that day under the old legislation. (4) The complaint may be made, or the investigation may be commenced, even if the conduct could not be the subject of a complaint under this Law if it had happened after the commencement day. (5) This Law applies (with the necessary modifications) in relation to the conduct. (6) However, disciplinary action may not be taken against a person under this Law in relation to the conduct if it is more onerous than the disciplinary action that could have been taken against the person under the old legislation in relation to the conduct. (7) This clause does not authorise an investigation to be commenced after the commencement day in relation to the conduct if an investigation of the relevant kind could not have been commenced under the old legislation in relation to the conduct had the old legislation not been repealed. 1. Save for one matter to which I shall shortly make reference, the applicant asserts and I agree that the provisions of clause 27 allow the complaints concerning the conduct of the respondent to be dealt with under the Uniform Law. The conduct complained of is alleged to have happened before 1 July, 2015. It could have been the subject of a complaint under the 2014 Act but no complaint had been made prior to 1 July, 2015. Accordingly, by subclause (2) a complaint may be made under the Uniform Law, as it has been. Likewise an investigation could be commenced under the Uniform Law after 1 July, 2015 by subclause (3), because no investigation had been commenced prior to the receipt of the complaint on 9 September, 2015. Accordingly, by reason of subclause (5) the Uniform Law applies. 2. No other provision within Clause 27 applies save for a consideration of the meaning of the provisions of subclause (6). Clause 27 (6) 1. It is necessary to give some consideration as to what is meant by the words "disciplinary action" as used in subclause (6). They are not specifically defined in that Act. If those words refer to and comprehend the initiation of proceedings alleging misconduct, then it would be necessary to enquire about whether the proceedings themselves and the available disciplinary orders are "more onerous" under the Uniform Law than under the 2014 Act. This was the position ultimately contended for by the respondent. 2. An alternative meaning involves a consideration of the totality of the context in which the reference to disciplinary action is made within the provisions of subclause (6). That is a reference to disciplinary action taken under the statute "in relation to the conduct" of a legal practitioner. So read, the "disciplinary action" refers to the available protective orders which are capable of being made in relation to the conduct of the legal practitioner. So confined, the "disciplinary action" refers to the protective orders to the exclusion of the process by which the protective orders are made. This was the position contended for by the applicant. 3. In support of this position the applicant made reference to the Legal Profession Uniform Law Application Act 2014 (NSW) ("the Application Act") the effect of which is described in its long title as follows; LEGAL PROFESSION UNIFORM LAW APPLICATION ACT 2014 - LONG TITLE An Act to apply the Legal Profession Uniform Law as a law of New South Wales; to provide for certain local matters to complement that Law; to repeal the Legal Profession Act 2004; to make transitional arrangements; to make consequential amendments to other Acts; and for other purposes. 1. Section 4 of the Application Act is as follows: 4 APPLICATION OF LEGAL PROFESSION UNIFORM LAW The Legal Profession Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria: (a) applies as a law of this jurisdiction, and (b) as so applying may be referred to as the Legal Profession Uniform Law (NSW) , and (c) so applies as if it were an Act. 1. Importantly, Section 3(2) of the Application Act dealing with definitions contains the following: (2) Terms used in this Act and also in the Legal Profession Uniform Law (NSW) have the same meanings in this Act as they have in that Law. 1. Accordingly, the definition of disciplinary action which is contained in section 148 of the Application Law will have the same meaning for the purpose of the Uniform Law. This definition is in the following terms; 148 DEFINITIONS In this Part: "disciplinary action" against a lawyer means any of the following actions taken under a law of this or another jurisdiction, whether or not taken under Chapter 5 of the Legal Profession Uniform Law (NSW) or under provisions of a corresponding law that correspond to that Chapter: (a) the suspension or cancellation of the Australian practising certificate or Australian registration certificate of the lawyer (other than a suspension or cancellation at the request or with the concurrence of the holder of the certificate that is not connected with a disciplinary matter), (b) the refusal to grant or renew an Australian practising certificate or Australian registration certificate applied for by the lawyer (other than a refusal on the ground that the lawyer is not eligible to apply for the grant or renewal), (c) the removal of the name of the lawyer from a roll of Australian lawyers, (d) the making of an order by a court or tribunal, or by another person or body, for or following a finding of unsatisfactory professional conduct or professional misconduct by the lawyer, other than an order cautioning the person, (e) the reprimanding of the lawyer, or the making of a compensation order against the lawyer, by a person or body without a formal finding of unsatisfactory professional conduct or professional misconduct, (f) the appointment of a manager or receiver for a law practice of which the lawyer is a legal practitioner associate, where the associate is specified or referred to in the notice of appointment served on the law practice. "lawyer",when used alone, has the same meaning as it has in Chapter 5 of the Legal Profession Uniform Law (NSW) (see section 261 of that Law). 1. It follows that the meaning to be attributed to "disciplinary action" contained within Clause 27 (6) is, by reference to section 148 of the Application Law, a reference to the protective orders that may be made consequent upon a finding of unsatisfactory professional conduct or professional misconduct. 2. There is only one other reference to "disciplinary action" in the Application Law, and that is contained in section 80, which is in the following terms: 80 APPLICATION OF PROVISIONS OF LEGAL PROFESSION UNIFORM LAW (NSW) The following provisions of the Legal Profession Uniform Law (NSW) apply in relation to ordered costs in the same way as they apply in relation to Uniform Law costs: (a) section 201 (Reasons to be given), (b) section 202 (Referral for disciplinary action), (c) section 203 (Admissibility determinations in disciplinary proceedings). 1. The reference to section 202 is a reference to the consequences of ascertainment of misconduct in connection with a costs assessment. This section is in the following terms: 202 REFERRAL FOR DISCIPLINARY ACTION On a costs assessment, a costs assessor-- (a) may refer a matter to the designated local regulatory authority if the costs assessor considers that the legal costs charged are not fair and reasonable; and (b) must refer a matter to the designated local regulatory authority if the costs assessor considers that the legal costs charged, or any other issue raised in the assessment, may amount to unsatisfactory professional conduct or professional misconduct. 1. At first reading the words "referral for disciplinary action" are capable of being read by reference to the processes by which proceedings alleging misconduct take place. This is because the words used prima facie refer in absolute terms to a process involving a described action. They do not refer to the possibility of the making of a protective order conditional upon a finding of relevant misconduct and the exercise of discretion as to whether to make a protective order. Such a prima facie meaning is only to be gathered by the words used in the heading to the section, and there is no reference to disciplinary action in the substantive body of section 202. I agree with the submission of the applicant that in these circumstances, it would be inappropriate to consider the cryptic reference to disciplinary action contained in the heading to the section as displacing the clear provisions of the definition set out in section 148 of the Application Law extracted above. The respondent's submissions on Clause 27(6) 1. In extensive written submissions the respondent relied on well-known principles of statutory construction which focus attention on the natural and ordinary meaning of words used in legislation based upon the notion that such meaning should only be displaced if the legislation under consideration is clearly ambiguous or absurd in its expression. The meaning of the words used should not be departed from unless they were contrary to or inconsistent with any expressed intention or declared purpose of the statute or "would involve any absurdity, repugnance or inconsistency in its different provisions", relying upon Burton J in Warbarton v Loveland 1882 1 Hud and Br 623 at 644. He contended that the provisions of Clause 27 should be examined alone and that it was inappropriate to have regard to the provisions of the Legal Profession Uniform Law Application Act upon which the applicant relied. 2. In my opinion the matter should be approached on the basis that there is no reason why the clear words used in the Application Law, which I have referred to above, should not be applied in the manner contended for by the applicant. Indeed, to do otherwise would contradict the clear principles of approach to construction of statutes upon which the respondent relies. I reject this aspect of the respondent's submissions. 3. The respondent next submitted that the approach to construction of the retrospective effect of Clause 27 contended for by the applicant interfered with a fundamental common law right which he possessed to have the matter determined pursuant to the relevant legislation which applied at the time that the alleged offending conduct occurred. He referred, by way of analogy, to a contractual situation between the applicant and himself by reason of his membership of the applicant. No such analogy arises in the circumstances of these proceedings. Neither the 2004 Act nor the Uniform Law created any rights or entitlements of the kind referred to in the well-known authorities which caution against the application of legislation retrospectively which would have the effect of removing such rights or entitlements. The legislation under consideration regulates the conduct of legal practitioners. The principal rights and entitlements which repose in the respondent by reason of legislation of this kind is to have afforded to him due process and natural justice. Any exposure to any adverse consequences by reference to changes in the nature or extent of protective orders under the Uniform Law when compared with the 2004 Act is protected by reason of Clause 27 (6). This submission is rejected. 4. The respondent next submitted that the provisions of subclauses (5), (6) and (7) of Clause 27 might be read by looking at them as, in effect, one comprehensive provision so as to render a different meaning to that contended for by the applicant. Presumably that would result in a meaning to be attributed to Clause 27(6) which was favourable to the position contended for by the respondent. I am unable to conclude that adopting such an approach would result in any different conclusion concerning the proper approach to construction of Clause 27 (6). I am unable to detect any relevant inconsistency between any of the provisions of these three subclauses, and in the circumstances there is no difficulty in reading them together. Such a conclusion militates against any argument advanced by the respondent that in some way the construction for which he contends is to be preferred over that advanced by the applicant. 5. The respondent sought to distinguish a number of well-known authorities relied upon by the applicant by referring to their factual bases. The principles for which they stand are not distinguishable by reason of any underlying factual bases. I do not feel constrained to deal with them in any detail. 6. Finally, the respondent emphasised that Clause 27 (6) created, in some way, a discretion by the use of the word "may". I am unable to read these words as creating some form of discretion. The provisions of this subclause appear to me to be mandatory in their application once the more onerous situation applies. This aspect of this submission is rejected. The respondent continued by asserting that in order to determine whether the disciplinary proceedings were more onerous, it would be necessary to undertake a detailed examination of the provisions of both the 2004 Act and the Uniform Law to ascertain whether the proceedings themselves were more onerous under the Uniform Law then the 2004 Act. However, once it is established that the disciplinary action referred to in the subclause is confined to the protective orders that can be made, as contended for by the applicant, then the comparative exercise which must clearly be undertaken, is confined accordingly. To the extent that the respondent may be taken to have submitted that the complexity of the comparative exercise would militate in favour of an interpretation of the meaning of the subclause contrary to that contended for by the applicant, I reject this submission. The more narrow meaning of "disciplinary action" as contended for by the applicant results in any argument based on any undue complexity being rejected. Consideration 1. For the reasons given above, I reject the submissions of the respondent. I accept the approach to construction contended for by the applicant. The meaning of "disciplinary action" when used in Clause 27 (6) is to be confined to the protective orders which may be made consequential upon any finding of relevant misconduct. Seen in this way there is no ambiguity or uncertainty that would detract from the ordinary meaning of the provisions of this subclause. 2. I conclude that interpreted in this way the provisions of clause 27 (6) are to be read as providing that any protective order made in circumstances to which Clause 27 applies must be limited in its scope and effect to one which is not more onerous than any protective order that could have been made under the 2004 Act. Accordingly, by way of example if, as is the case, a higher level of fine is permitted under the Uniform Act than was permitted under the 2004 Act the maximum fine which could be imposed on proceedings to which clause 27 applies would be that under the 2004 Act. 3. This approach to construction accords with the principles which apply in ascertaining the meaning which should be assigned to statutory provisions which are summarised in a recent decision of the High Court of Australia in SZTA v Minister for Immigration and Border Protection [2017] HCA 34. At [14] and following the majority of the Court (Kiefel CJ, Nettle and Gordon JJ) said; The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose[13]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense[14]. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (citations omitted). 1. Some amplification of what is to be considered when referring to context is to be found in the judgement of Brennan CJ, Dawson, Toohey and Gummow JJ in the High Court of Australia in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; "[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy." 1. I conclude that that the context and purpose of the Uniform Law is made clear by the definition of "disciplinary action" in the Application Act namely that these words are directed to and refer to the protective orders which might be made rather than the processes leading up to the institution of proceedings, a finding of relevant misconduct and the determination of the exercise of discretion in considering appropriate protective orders. 2. Seen in this way, the interlocutory application made by the respondent must fail and must be dismissed. 3. I have not heard any argument as to costs and I will reserve costs 4. The proceedings will be referred to the Directions List for further case management. In the interim the parties are encouraged to confer with a view to refining the issues and preparing an appropriate timetable. Orders 1. I make the following orders; 1. The interlocutory application of the respondent is dismissed 2. Costs are reserved with liberty to apply. Any such application must be made within one month of this date. 3. The proceedings are stood over to a date to be fixed for further directions to allow them to be determined to finality. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2018